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February 19, 2015, Trial News

Air bag defect linked to sixth death as crisis worsens

Alyssa E. Lambert

A sixth person has been killed and at least 160 people have been injured by Takata Corp.’s exploding air bags. As questions arise over problems with the recall and repair process, attorneys are concerned the injuries and deaths will grow.

A sixth person has been killed by Takata Corp.’s air bags, which can eject shrapnel-like material when they deploy. Ten automakers have recalled more than 12 million vehicles in the United States and 19 million globally. At least 160 people have been injured, and more than two dozen personal injury and wrongful death lawsuits—plus 70 consumer class actions—have been filed. As questions arise over problems with the recall and repair process, attorneys are concerned the injuries and deaths will grow.

In June 2014, evidence surfaced that Takata, one of the world’s largest air bag manufacturers, and automakers have known about the defect for years. At least five deaths, four of them in the United States, have been linked to the defect, as Trial News ​reported previously. On Jan. 18, Carlos Solis was driving a 2002 Honda Accord in Houston when he was involved in a low-impact crash. Solis’s air bag deployed, embedding pieces of the air bag inflator in his neck and severing his jugular, killing him before the authorities arrived.

Solis purchased the car in April 2014 from All Stars Auto Sales and never received a recall notice, although the car was included in Honda’s June 2014 recall for cars in high-humidity states. Honda mailed air bag recall notice letters to the prior owner in 2011, but the car was never brought in. A wrongful death suit has been filed on behalf of Solis’s two children against Honda and Takata for strict liability, negligence, and gross negligence. The plaintiff also sued All Stars for failing to repair vehicles with open recalls before reselling them. (Sheckler v. Am. Honda Motor Co., Inc., No. 2015-04565 (Tex., Harris Co. Jud. Dist. filed Jan. 27, 2015).)

“The Solis family never received any recall notice, which just shows the inefficiency of the owner notification process that Honda and other manufacturers are using,” said Houston attorney Rob Ammons, who represents the family.

In November, the National Highway Traffic Safety Administration (NHTSA) issued a nationwide recall of driver's-side air bags. Automakers agreed to it, but Takata has refused to comply. NHTSA is still investigating expanding the recall to passenger-side air bags. But the crisis has brought several issues to light. Orlando, Fla., lawyer Richard Newsome, who represents several plaintiffs in personal injury actions against Takata, said the auto recall system as a whole is severely flawed. “This is a terrible recall process where we don’t have guidelines or audit procedures for recall return rates. Some of the recall rates are as low as 20 percent, or more commonly around 60 percent. To me, that is the biggest problem,” he said.

Under the Tread Act, which was passed in 2000, automakers are required to report potential safety issues and defects to the government. The law does not require automakers to send notices by certified return receipt or call customers to notify them about the recalls, according to Newsome. So in many cases, consumers are not getting the notices. “There are holes in the Tread Act, and we’re seeing that now with Takata,” Newsome said.

Another issue is the sluggish replacement pace: Takata can manufacture only 450,000 replacement air bags per month, far short of the total recall number. Replacements won’t be completed until at least the end of the year. “If a family receives a recall notice, and the dealer says it can’t fix it until the summer, what is the family supposed to do?” Newsome said. Although Honda promised it would provide rental cars if air bag replacements were not immediately available, Newsome said that isn’t always happening. “Honda said it would give people rental cars, but that hasn’t been translated to the local dealerships; some people are given rental cars, and some are not,” he said.

Further compounding the problem is a related recall over the inadvertent deployment of air bags in the absence of a crash. On Jan. 31, NHTSA issued a recall for 2.1 million Chrysler, Honda, and Toyota vehicles made in the early 2000s with this defect. Cars were initially recalled for this problem between 2012 and 2014, but some air bags continued to malfunction after the repairs, prompting this new recall. More than half—about 1.2 million—of those cars also have been recalled for containing the exploding air bags manufactured by Takata, forcing some consumers to bring their cars in for recalls more than once.

Takata still hasn’t identified a root cause of the exploding air bag defect. Some signs have pointed to ammonium nitrate, which is used in the inflator and may be too volatile a propellant.

“If Takata hasn’t identified and published a root cause, how does it know that it fixed the problem?” Ammons asked. “If the new inflators are made with ammonium nitrate, they will still have problems in high-humidity areas over time.”

Newsome agreed. Because most of the recalled air bags are in older cars, “we could be back here in 10 years with the same problem,” he said.

The Judicial Panel on Multidistrict Litigation granted MDL status to the more than 70 class actions against Takata. Those plaintiffs allege Takata and the automakers committed fraud by concealing information about the defect. The cases, including some personal injury actions filed in federal court, have been transferred to the Southern District of Florida.